Mr McCLELLAND (Barton) (6.53 p.m.) —The Anti-terrorism Bill 2004 makes changes to four pieces of legislation: the Crimes Act 1914; the Crimes (Foreign Incursions and Recruitment) Act 1978; the Criminal Code Act 1995; and the Proceeds of Crime Act 2002. In my contribution, I will discuss the relevant amendments. Significantly, when the bill was introduced it was referred to the Senate Legal and Constitutional Committee by the Attorney-General, who consulted me in that respect. I thank the Attorney-General for his call at that time and for being in the House today. I welcome the bipartisan report of Liberal and Labor members of the committee, which was tabled in the Senate yesterday.
I can inform the House that I have written to the Attorney-General today—he may not have seen the letter yet—indicating that Labor accepts those bipartisan recommendations of the committee and will support amendments to the bill in the Senate to implement them. We will support the second reading of this bill, but we indicate our intention to move amendments along the lines of the Senate committee report, in the event that the government is not minded to do so. However, we encourage the government, obviously, to have regard to those bipartisan recommendations. We believe the committee is to be congratulated on its bipartisan approach to the legislation, which instinctively involves issues of some controversy. I strongly urge, as I have indicated, the government to support those recommendations.
I will first address the amendments to the Crimes Act that deal with police detention. In Labor's view, they are the most significant and controversial provisions of the bill. After the High Court case of Williams and the Queen, part IC was inserted into the Crimes Act in 1991. It enables police to arrest and detain without charge for up to four hours a person suspected of committing a Commonwealth offence, including a terrorist offence, for the purpose of investigating whether they have committed an offence. This is referred to as the investigation period. Part IC then enables the police to apply to a magistrate or justice for an extension to the investigation period of up to eight hours. For the purpose of determining how much of the investigation period has passed, part IC currently specifies times that are to be disregarded. They are known colloquially as `dead time'. These include times during questioning when there are delays or a suspension of the questioning—while, for example, the person communicates with a lawyer, interpreter, relative or friend, while the person is allowed to rest or recuperate, or while a forensic procedure, such as fingerprinting or DNA sampling, is undertaken. [start page 28445]
The bill would make two additional changes to part IC where a person is arrested and questioned for terrorism offences. Firstly, it would enable a magistrate or a justice to extend the investigation period by 20 hours instead of eight hours, increasing the total maximum investigation period to 24 hours instead of 12 hours. The extension would not necessarily be for the total 20 hours; it would depend upon the request obviously and the decision of the magistrate or justice. Secondly, it would add to the list of times to be disregarded when determining how much of the investigation period has passed, to include:
... any reasonable period during which the questioning of the person is reasonably suspended or delayed in order to allow the investigating official to obtain information relevant to the investigation from a place outside Australia that is in a different time zone, being a period that does not exceed the amount of the time zone difference.
So the extent of the actual time zone is an absolute limit to that particular provision of dead time, and again it is not necessarily the absolute period, if the information sought is obtained in a shorter period.
I should note that the proposals to amend part IC to deal with terrorism are not new. For example, on 16 October 2002, following the Bali bombings, constitutional law expert Professor George Williams suggested at a vitals issues seminar hosted by the Parliamentary Library that a reform along those lines might be considered. Professor Williams raised the issue more by way of a question than necessarily as a submission, but he said:
The only element that arguably might be missing, I think, from that regime which might merit attention from the Prime Minister's review is that there is no longer detention period for terrorist suspects.
Later he said:
My own view is that a longer period of detention for terrorist suspects may well be appropriate in the climate after the Bali attack.
Professor Williams had regard, of course, to steps that had been taken in both Canada and the United Kingdom.
The proposal in this bill followed the issuing of a communique by Commonwealth, state and territory police commissioners on 18 March this year, which stated:
Discussion included the need to ensure that the Commonwealth Crimes Act allows for appropriate investigative processes and interviewing of persons suspected of terrorist-related offences.
The conference was of the view that the current Commonwealth legislation may undermine a successful prosecution of offenders engaged in significant terrorist activity. In fact, AFP Commissioner Mick Keelty indicated to the Senate committee considering this bill that the need for this reform was brought home to the AFP by the complexities it encountered during its investigation of the Bali bombings. The Leader of the Opposition is in fact on record as saying that we must respect suggestions advanced by our first response agencies—our state and federal police agencies. Indeed, Labor has carefully considered this proposal and balanced a number of considerations. [start page 28446]
Prolonged detention of citizens without charge is certainly an extraordinary measure, which should only be sanctioned in exceptional circumstances where it is necessary to counter a demonstrated and urgent threat to the safety of the community. Labor has considered the cases put by the police commissioners—particularly AFP Commissioner Keelty in light of the AFP's actual experience of investigating the Bali terrorist bombings. We believe those submissions have made a case for these amendments—to deal with the unique challenges of international terrorism investigations, which, of course, may involve receiving information not only from jurisdictions within Australia but also from those overseas. In saying that, I should indicate and emphasise that we do not see this as establishing a precedent for their future extension to other areas of criminal law enforcement.
We note that the bill preserves the comprehensive regime of safeguards contained in part IC of the legislation, including, most significantly, supervision of the extension of time by a magistrate or justice, who must not extend the investigation period unless they are satisfied, firstly, that further detention is necessary to preserve or obtain evidence or to complete the investigation, secondly, that the investigation is being conducted properly and without delay and, thirdly, that the detained person or their representative has been given the opportunity to make representations about the extension application. So the presumption is against extension. Those criteria are all cumulative—they are not in the alternative—and they do constrain the discretion that the magistrate or justice is required to exercise and the factors they are required to consider before granting an extension in their role in supervising the operation of the act. There are also additional safeguards for Aboriginal and Torres Strait Islander people, which are not changed by the bill. Similarly, there are safeguards in respect of the detention of young people.
It is worth pointing out that this proposal is separate from new powers granted by the parliament to ASIO last year, which of course in themselves were controversial, in that they involved a power to detain and question persons who have information—or who are reasonably believed to have information—about terrorism offences. Fundamentally, the powers given to ASIO and the powers given to the AFP in this case are for different purposes. ASIO's powers are for the purpose of gathering intelligence that may prevent a terrorist attack, while the police's powers are for the purpose of gathering evidence that would assist in a prosecution. Indeed, on the one hand the information obtained in the ASIO process would not be for the purpose of admission into court, whereas that is very much the purpose of the questioning regime we are considering in this bill.
Liberal and Labor members of the Senate committee have recommended that the use of the new dead time provision relating to overseas inquiries also be subject to judicial oversight and only available upon successful application to a judicial officer. In my letter to the Attorney-General, I indicated that Labor believes that this is also a reasonable requirement which would not be unworkable and which would provide appropriate supervision of suspensions in questioning under the new provisions. That is not to say we believe the Australian Federal Police would request dead time lightly, but we believe from the point of view of the efficacy of the operation of the system that the continuation of judicial oversight is desirable all round. [start page 28447]
Labor also believes it would be desirable to hold an independent review of the operation of these amendments after a period of three years. Labor is certainly committed to carrying out such a review. Again, we believe that if a review is undertaken on the basis of actual cases it can do a lot to improve the operation of the provisions—and indeed in some cases it can do a lot to remove concern or controversy within the community, when people are able to be satisfied that the provisions are operating effectively on the one hand and fairly on the other. Labor is certainly committed, as I say, to carrying out such a review, and we would urge the government to similarly commit themselves to it.
The second element of the bill that I will now discuss relates to amendments to the Crimes (Foreign Incursions and Recruitment) Act 1978. The bill would make four main changes to the provisions of that legislation. Firstly, it would increase the maximum penalty for the relevant offence of engaging in hostile activity in a foreign state—increasing it from 14 years to 20 years imprisonment. Secondly, it would apply to persons who were present in Australia at any time before the relevant conduct—not just in the preceding year, as is currently provided in the legislation. Thirdly, it would remove the defence currently available to persons serving with foreign government armed forces, where the accused was engaged in the relevant conduct while in or with an organisation that was either, on the one hand, a terrorist organisation listed under the Criminal Code Act 1995—they are known generally as proscribed organisations, of which there are now a number—or, on the other hand, an organisation proscribed by regulations made under a new power in the Crimes (Foreign Incursions and Recruitment) Act, a power which would be given to the Attorney-General.
Finally, it would enable a minister to issue a certificate stating that an organisation was not part of the armed forces of the government of a foreign state, which constitutes prima facie proof of that fact. This adds to the three certificates the minister can currently issue to facilitate proof of difficult facts which may have implications for Australia's international relations. The basic purpose behind these amendments is to update the 1978 act to reflect the current reality of state-sponsored terrorism where there is a relationship between a government and a terrorist organisation, such as has been the case with al-Qaeda in Afghanistan—and, indeed, in the Sudan.
One flaw in the drafting of the bill, identified by Liberal and Labor members of the Senate committee, is the absence of criteria for the exercise of the proposed new power to make regulations proscribing organisations. We acknowledge those regulations are disallowable by the parliament and in that sense parliamentary oversight is retained. However, in the absence of any legislative criteria, there is little guide either to the Attorney or the parliament as to the proper exercise of the power. In my letter to the Attorney-General, I indicated that Labor would support amendments to include criteria that would clarify the purpose of the power. We understand that, in addition to the armed forces purportedly of a state, that would include instances where they are themselves effectively part of a terrorist network. In another instance indicated by the government, they could be used to list foreign armed forces which have engaged in gross violations of human rights or the laws of war. Again, those sorts of criteria would be appropriate, and Labor would certainly support criteria along those lines. [start page 28448]
I also sought clarification from the Attorney-General of the government's understanding of the legal position of persons who make all reasonable attempts to withdraw from foreign hostile activity with an organisation proscribed under this power but who are unable to do so because of duress or compulsion—and, indeed, in some instances are possibly themselves facing severe penalty as a result of desertion. That would be a worst-case scenario. Clearly, I think most Australians would consider it undesirable for any Australian to be involved in hostile activities overseas, but if there were circumstances where criminality was attached to that conduct and circumstances where a person was the subject of extreme duress or compulsion then there would be factors that we believe should be considered in the operation of the legislation.
I will next deal with amendments to the Criminal Code Act 1995. In essence, the amendments to that legislation that would be effected by this bill would create or amend the offence of being a member of a terrorist organisation. That offence would apply to organisations that are not listed by the Attorney-General. Currently there is an offence of belonging to such an organisation—one of those organisations that has been proscribed as I have indicated. In respect of these proposals, the offence would also apply to those organisations that a prosecution could prove in court were terrorist organisations—that is, any organisation, in the broad, that has committed, is committing or intends to commit a terrorist offence. I should indicate that the onus would still be on the Crown to establish beyond reasonable doubt the fact that the organisation was a terrorist organisation. Labor has consistently advocated in the context of an earlier bill that it is appropriate for courts to have a central role in determining, on the basis of evidence, which organisations are terrorist organisations. Accordingly, we can indicate that we support the amendment proposed by the government.
The amendments in respect of the training offences are slightly more complex. In summary, in the first offence, which carries a maximum penalty of 25 years, the prosecution would no longer have to prove that the accused knew they were involved with a terrorist organisation but instead that they were reckless as to that circumstance. The use of the language in the Criminal Code means that it would have to be shown that the accused was aware of a substantial risk that the organisation was a terrorist organisation and, having regard to the circumstances known to them, that it was unjustifiable to take that risk. In the second offence, carrying a maximum penalty of 25 years, the prosecution would have to establish that the person was dealing with a terrorist organisation and the accused would have to discharge an evidential burden, which means pointing to evidence that suggests a reasonable possibility for their conduct was in existence and that they were not reckless as to the circumstances of that conduct.
We have carefully considered this amendment, as it does introduce a modified form of strict liability and certainly the penalty of 25 years is not insignificant, but we certainly acknowledge the concerns expressed to the Senate committee, including those expressed by the Australian Institute of Criminology, about the burden this places on an accused. We have weighed up the considerations. Indeed, we have weighed up comments by Commissioner Keelty after the investigations into the Bali bombings. He indicated the extent of training being provided by terrorist organisations in not only armed combat but also the use of electronic technology, detonations and so forth. Having regard in particular to advice from the first response agencies, we have indicated again that we will support these measures. I quote, for example, the words of ASIO Director Dennis Richardson in the report of ASIO to parliament in November 2003. He said: [start page 28449]
ASIO is aware of a number of Australians who have received terrorist training since the late 1990s. The level of instruction received by these individuals ranges from basic military training to advanced terrorist tactics. Identifying other Australians who have undertaken terrorist training remains a priority.
Similarly, as I have indicated, Australian Federal Police Commissioner Mick Keelty specifically said that the significance of the training and the speed with which information is transmitted to potential terrorists through such training is of such significance that consideration should be given to the concept of criminal recklessness in terms of either providing training to terrorist organisations or receiving such training. We believe these statements highlight the real concerns of our front-line agencies about Australian involvement in terrorist training. Again, on balance, we are satisfied of the need for parliament to strengthen the training offences in the Criminal Code, and we will support these amendments, as I have indicated.
Finally, I turn to amendments to the Proceeds of Crime Act. The bill makes three main changes to this act. Firstly, the bill would specify that a literary proceeds order can be made where a person's notoriety results directly or indirectly from their commission of an offence. Secondly, where a foreign indictable offence is concerned, the bill would remove the requirement that the proceeds were derived in Australia and replace it with a requirement that the proceeds were either derived in Australia or were derived overseas and have been transferred to Australia. Thirdly, the bill would amend the definition of `foreign indictable offence' to include conduct that was not an indictable offence under Australian law at the time of the conduct but had become such an offence by the time of the relevant application to the court—and obviously, in 2002, we introduced significant antiterrorism provisions and offences—and also to specify that offences against the law of a foreign country include offences triable by a United States military commission established under the United States President's military order of 13 November 2001.
It should be acknowledged that the Proceeds of Crime Act already covers a substantial portion of literary proceeds that could be derived from terrorist activity. The grave and unique nature of terrorism is already recognised in the act, which excludes terrorism from the statute of limitations which applies to all other offences—that is, a period of six years. The residual categories of terrorist literary proceeds that would not be covered are, firstly, those derived from overseas and transferred to Australia and, secondly, those derived from overseas terrorist activity which predated the enactment of antiterrorism legislation in Australia in mid-2002. Again, it is appropriate that these loopholes be closed.
We are not opposed to amendments that result in closures of those loopholes, although we do agree with the unanimous conclusion of the Liberal and Labor members of the Senate Legal and Constitutional Legislation Committee that these amendments would have a retrospective operation. In this respect, the explanatory memorandum which asserts otherwise is incorrect, and we believe it should appropriately be corrected. We certainly agree that the independent review mandated by section 327 of the Proceeds of Crime Act should examine the impact of the retrospective operation of these amendments which I have described and, in particular, whether they have implications beyond the area of terrorist literary proceeds.
In considering these amendments, we have had regard to the fact that two key safeguards in the current act are maintained. The first safeguard of significance is that the civil burden remains on the prosecution to prove on the basis of evidence that the person committed a terrorist offence. For example, in the relevant cases of David Hicks or Mamdouh Habib, the court is certainly not obliged to recognise any conviction by a United States military commission as conclusive evidence of the issue, but rather the Crown would have a civil onus of proving that fact. [start page 28450]
Secondly, the court retains the ultimate discretion of whether or not to make a literary proceeds order at all and, if it does make such an order, whether to confiscate all or only some of the profits. Under the act, the court must take into account a range of factors when determining whether or not to make such an order, including the nature and purpose of the product or activity, whether supplying the product or carrying out the activity was in the public interest, and the social, cultural or educational value of the product. In considering those criteria, the members of the Senate committee have recommended that item 24 of the bill be amended to remove the words `or indirectly' and that item 26 of the bill be amended to omit the proposed reference to the United States military commissions.
In my letter to the Attorney-General, I have indicated that Labor agrees with these bipartisan recommendations. Specifically, in relation to item 24, I have drawn the Attorney's attention to the Australian Law Reform Commission's 1999 report, Confiscation that counts, which formed the basis for the literary proceeds regime. That report stated:
... occasions may arise when the benefit gained by the person is property characterisable as attributable to the experience that the person has gained as a rehabilitatee and wishes to share with society. In such cases, it would seem inappropriate to mandatorily confiscate that part of the benefit, albeit that, ultimately, it is derived indirectly from the person's involvement in criminal, or prescribed unlawful, conduct.
Hence the reference to the public interest that I have previously referred to. We believe that, when that intention is considered, item 24 does go too far, and we would support an amendment either deleting the words `or indirectly' or simply removing item 24 from the bill.
Regarding item 26, I share the view of Liberal and Labor members of the committee that proposed subsection 337A(3) is inappropriate. The term `offence against a law of a foreign country' appears several times in Commonwealth legislation but is deliberately left undefined, leaving it to the courts to identify and recognise foreign criminal laws. Labor does not believe there is a case for creating an exception by specifically referring to offences triable by US military commissions—offences which are promulgated by a single lawyer employed by the US Department of Defense in Military Commission Instruction No. 2.
We acknowledge that, while parliament recently agreed to a reference to United States military commissions in the International Transfer of Prisoners Amendment Act 2004, that legislation was to support a humanitarian purpose—namely, to enable Australian citizens detained without charge for more than two years to serve any future term of imprisonment closer to family members and support networks in Australia. Similarly, as recommended by Liberal and Labor members of the Senate committee, we will be supporting an amendment to remove that provision.
In conclusion, Labor supports the vast majority of measures in this bill and certainly supports the substance of those measures, and we will be supporting the passage of the bill through this House. As I have indicated in my letter to the Attorney-General, we intend to continue the bipartisan approach to this legislation demonstrated by Liberal and Labor members of the Senate Legal and Constitutional Legislation Committee and will be supporting amendments in the Senate to give effect to their recommendations. I strongly urge the Attorney-General to do the same on behalf of the government. [start page 28451]